JDI IN THE NEWS - 2014

Pregnant in Prison

June 3, 2014
By Lauren Kirchner, Pacific Standard

When Orange Is the New Black returns to Netflix with its second season this Friday, one of the many plot lines fans will eagerly see resume is the star-crossed love affair between a prison inmate and the guard who is the father of her unborn baby.

In the first season of the show, a lovable and naive character, an inmate named Daya (played by Dascha Polanco), started a secret relationship with a lovable and naive prison guard named Bennett (played by Matt McGorry). They hid love notes for each other and rendezvoused in closets. But their grown-up version of a schoolyard crush got very complicated, very fast, when Daya found out she was pregnant.

Legally speaking, an inmate’s relationship with a guard will never be considered truly consensual. If their tryst were discovered, Bennett would obviously be fired, and probably arrested as a sex offender. So Daya first tried a weird herbal tea remedy that she thought would cause her to abort the baby, which was just as ineffectual as it sounds.

Just last month, Massachusetts became the latest state to ban the practice of shackling female prisoners during birth; but 31 states have no such laws on the books.

When she realized she wanted to have the baby, the other inmates came up with a plan. Daya would seduce a different guard, Mendez (whom everyone hates), into having sex with her, and the women would arrange for them to be caught in the act. Mendez would be fired, if all went according to plan, and Daya would be able to have the baby without getting herself or Bennett in trouble. The plan worked--sort of--but it now seems as though Mendez will be able to return to work after a brief suspension, and Bennett is still crushed by Daya’s betrayal, even though it was supposedly for his own good.

This is a soapy plotline, on a fictional show, but it does hint at the complicated and harsh realities that women face when they become pregnant while incarcerated. And there are a lot of them; according to The Sentencing Project, one in 25 women in state prisons and one in 33 in federal prisons are pregnant when admitted to prison. As of 2010, there were approximately 200,000 women in prison and jail in the U.S. (PDF).

It will be interesting to see how many of the complications that pregnant prisoners face will be directly or indirectly addressed by the show Daya’s pregnancy progresses. For one, what will the quality of her medical care be? There are certain federally established standards of health care that all prisons must meet for pregnant inmates, including prenatal screenings, nutritional guidance, and psychological counseling. But health care can vary from state to state and prison to prison. For instance, states vary widely (not surprisingly) in how easy prisons make it for prisoners to have access to abortions. In the state of New York, where the fictional “Litchfield Penitentiary” is located in the show, the NYCLU investigated health care services for women in jail and found the policies there inconsistent and needlessly “vague.”

In Connecticut, where Orange Is the New Black author Piper Kerman was actually incarcerated, all prisons are required to provide prenatal counseling and exams, and delivery in an outside hospital, but not access to abortions or abortion counseling (PDF). (In an op-ed for the NewÂ YorkÂ Times last year, Kerman wrote that the Danbury prison is home to the mothers of 700 children.)

But Daya has already decided to keep her baby. So when she gives birth in a nearby hospital, will she be shackled? She and the other prisoners at Litchfield seem to enjoy a lot of freedom of movement inside their low-security prison. But not all real-life prisoners are so lucky; some prisoners have their hands cuffed while they are in the hospital, or even have their ankles cuffed to their beds during delivery. Just last month, Massachusetts became the latest state to ban the practice of shackling female prisoners during birth; but 31 states have no such laws on the books.

When the baby is born, where will it go, and who will take care of it? A Bureau of Justice Statistics report in 2008 found that most prisoners who are women most often give custody of their children to their own parents while they are incarcerated, although many do have to give them up to the foster care system when there were no other options. There is actually a (controversial) movement to establish nurseries in prisons, so that babies can benefit from being near their mothers in crucial early development years. But that won’t happen at Litchfield any time soon. We’ve already seen a minor character on the show, Ruiz, give birth. After a very brief stay in the hospital, she came back without her child, and in the throes of depression.

Finally, if Mendez is formally charged with rape, what will be the fallout? According to the Justice Department last week, “an estimated four percent of state and federal prison inmates and just over three percent of jail inmates reported experiencing one or more incidents of sexual victimization by another inmate or a facility staff member within the previous 12 months.” And the problem is twice as bad in juvenile detention facilities. The non-profit organization Just Detention International estimates that roughly 200,000 adult and children behind bars are sexually abused each year.

There are signs that the federal government is taking this seriously, however. A 2003 federal law called the Prison Rape Elimination Act (PREA) required that every state take steps to prevent and punish sexual violence in prisons; 2014 is the first year that the states that don’t comply to the law’s “zero tolerance” rules are being penalized with reduced federal funding. Here’s how Just Detention International, a leading force in pushing the passage of PREA, describes the law:

Among its unprecedented provisions, the standards mandate strong protections for lesbian, gay, bisexual, and transgender inmates; a ban on routine pat-down searches of female adult inmates by male staff; strict limitations on the housing of youth in adult facilities; and a requirement that all facilities undergo independent audits every three years. The standards also require that facilities offer survivors access to rape crisis counselors--trained experts who provide crisis intervention and emotional support in the aftermath of an assault.

From what we’ve seen so far of the fictional “Litchfield” response to catching Mendez and Daya in the act in a closet, it seems administrators will continue to hush it up and hope it goes away. But in the real world, this historic law was hard-fought by activists, lobbyists, and prisoners’-rights organizations who wouldn’t want life to imitate art.